Jammu & Kashmir High Court
Reserved On:- 21.07.2022 vs Balbir Singh S/O Bhola Ram R/O Dharat ... on 31 August, 2022
Author: Mohan Lal
Bench: Mohan Lal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU 1.
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CRAA No. 30/2015
Reserved on:- 21.07.2022
Pronounced on:- 31.08.2022
State Through Police Station Nowshera Rajouri ....Appellant(s)
Through :- Sh. Bhanu Jasrotia, GA.
V/s
Balbir Singh S/O Bhola Ram R/O Dharat Tehsil ....Respondent(s)
Nowshera.
6. Through :- Sh. Raghubir Singh, Advocate.
HON‟BLE MR. JUSTICE RAJNESH OSWAL, JUDGE Coram: HON‟BLE MR. JUSTICE MOHAN LAL, JUDGE JUDGMEN T Per Mohan Lal-J
1. Instant Criminal Acquittal Appeal is directed against the judgment and order dated 31.07.2014 rendered by the Court of learned Principal Sessions Judge Rajouri (hereinafter referred to as the "trial Court") in case File No. 30/Challan titled, "State VS. Balbir Singh", whereby, the respondent/accused has been acquitted of the charges leveled against him in FIR No. 65/2007 of Police Station Nowshera for commission of offences u/ss 364/302 RPC.
2. Aggrieved of and dissatisfied with the impugned judgment and order dated 31- 07-2014, appellant/State has questioned it‟s legality, propriety and correctness on the following grounds:-
(i) that the order of the trial Court is against the law and facts of the case, there is sufficient material on record to convict the respondent/accused, but the learned trial Judge has not appreciated the law and facts of the case, which has resulted into acquittal of the respondent/accused;
(ii) that the prosecution has established the case against the respondent by adducing documentary as well as oral evidence, which in ordinary course of nature is sufficient to prove the guilt of respondent/accused who has willfully and intentionally committed the crime for which he deserves to be punished;
(iii) that the trial Court has failed to appreciate the prosecution evidence in its true and correct perspective, the important pieces of evidence have 2 CRAA No. 30/2015 been ignored, the judgment is based on surmises and conjectures, the conclusion drawn by the trial Court is against the weight of evidence, the occurrence is proved therefore the acquittal is bad in the eyes of law, as the trial Court has taken a hyper technical approach, whereas, the direct and circumstantial evidence have sufficiently proved the guilt of the respondent, therefore, the impugned judgment, which is bad in the eyes of law, is liable to be set aside.
3. Sh. Bhanu Jasrotia, Ld. GA, appearing on behalf of the appellant/State, has vehemently submitted arguments, that in the facts and circumstances of the case and the evidence available on record, the trial Court has committed a grave error in acquitting the respondent/accused for commission of crime of a murder under Sections 302/364 RPC, the trial Court ought to have relied upon the oral as well as documentary evidence which was led by the prosecution as such evidence is cogent, credible and trustworthy against respondent/accused, but the reasons assigned by the trial Court in appreciating the evidence do not inspire confidence. It is argued, that the trial Court has erred in not relying upon oral as well as documentary evidence, and if the trial Court in it‟s right perspective would have appreciated the evidence, it could have recorded finding of conviction against respondent/accused.
4. Sh. Raghubir Singh Ld. Counsel for respondent/accused, per contra, while supporting the impugned judgment of the trial Court has strenuously argued, that the trial Court has correctly appreciated the evidence on record and has rightly come to the conclusion that the offences of kidnapping and murder u/ss 364/302 RPC have not been proved against the respondent/accused. It is argued, that the judgment impugned, acquitting respondent/accused does not suffer from any perversity, impropriety or illegality and the same does not call for any interference by the appellate court. Prayer has been made for dismissal of the appeal.
3 CRAA No. 30/2015
5. The facts germane to filing of the instant acquittal appeal lie in a narrow compass. For the sake of brevity, the prosecution story is briefly narrated as under:-
"that on 22.06.2007, complainant-Mohd. Nazir lodged a written application/complaint before the Police Station Nowshera stating therein, that he is living alongwith his daughter-in-law and granddaughter aged 2 ½ years at Mora Dhak. In his neighborhood, Mohan Lal S/o Mansha Ram‟s brother-in-law-Balbir Kumar (accused) used to come to the house of his Jija. He used to taunt and pass obscene gesture to his daughter-in- law. On the complaint of his daughter-in-law, he passed the message to the brother-in-law of the accused to mend his ways over which he became inimical.
On 21.06.2007 at the mid of night, when he alongwith his family members were sleeping, at about 4- ½ am in the morning, he woke up, but did not find his daughter-in-law on her bed. During the course of search for his daughter-in-law, he was told by Farooq S/o Mohd.Ishaq R/o Dharat that the accused-Balbir Kumar with criminal intention to commit murder of his daughter-in-law has kidnapped her and took her to Charayala forest, where he had administered some poisonous substance to her and thereafter, he fled away from the place of forest. She has been taken to Hospital, where she has been admitted. When he (complainant) reached in the Hospital, Shamim Akhter was breathing her last. On this, FIR u/s 364 RPC was registered and investigation was commenced. SHO went in the Hospital for recording statement. He gave one docket to MO, but the deceased succumbed to her injuries. On this, offence under Section 302 RPC was added. Dead body was taken. Farad magboozgi of the dead body was prepared. MO was requested through docket to conduct examination of the deceased with regard to rape. Clothes of dead body were seized and the dead body was given to legal heir for performing last rites after conducting of postmortem. Statement of the complainant under Section 161 Cr.P.C was recorded with regard to seizure. Site plan was prepared and statements of the witnesses to circumstances were recorded under Section 161 Cr.PC. Statement of Bimla Devi under Section 164 Cr.P.C was also recorded. Clothes were got resealed from Magistrate and sent to FSL. The accused was arrested on 10.7.2007 and his mobile phone number 9419630882 was seized. Call detail from BSNL was also obtained. It was found that from this phone, number of calls were made to phone No. 09821175662, the mobile number of husband of the deceased at Mumbai.
During investigation, it was found that husband of the deceased was working at Mumbai. The deceased was living with her in-laws. She was having one baby of 2 ½ years. One-Mohan Lal was living there in their neighbourhood. The accused was coming to the said Mohan Lal. The accused also used to come in the house of the deceased. During that period, there developed illicit relationship between the accused and the deceased, due to which, she became pregnant. The husband of the deceased was working at Mumbai for the last one year and never turned up. The deceased was pregnant, so the accused in order to save his skin and to get rid of fury another community, kidnapped-the deceased on the day of occurrence from her home. He took her to jungle and administered her poisonous substance in order to kill her. She became unconscious and the accused fled away. Thereafter, the deceased died."4 CRAA No. 30/2015
6. After completion of investigation, chargesheet was produced before the competent Court of law. Charges were framed against respondent/accused on 29-05-2010 for commission of offences u/ss 364/302 RPC. Contents of the charges were read over and explained to respondent/ accused who pleaded not guilty to the charges and claimed tried. In a bid to prove it‟s case against the respondent/accused, prosecution out of 24 witnesses listed in the calendar of witnesses in the chargesheet, examined only 18 witnesses. Evidence of prosecution was closed by trial Court‟s order on 16.01.2012. As the accused could not be acquitted in terms of Section 273 Cr.P.C, the statement of the accused under the scheme of section 342 Cr.P.C was recorded on 15.02.2012, wherein, accused denied all the incriminating circumstances/evidence against him, pleaded innocence and his false implication in the case, whereafter, accused was directed to lead his defence evidence. The accused did not produce any defence evidence, therefore, the defence evidence of the accused was closed on 18.04.2012. Final arguments were heard, whereafter, vide the impugned judgment dated 31.07.2014, the accused/respondent was acquitted of the charges, hence the acquittal appeal.
7. Appellant/state has led oral as well as documentary evidence to substantiate charges against the accused/respondent. Prosecution has examined as many as 18 witnesses out of listed 24 witnesses. The prosecution examined the „oral witnesses‟ as well as the „witnesses to the documentary evidence‟ as under:-
PW Name of the witness Role/fact the witness to prove
1 Mohd. Nazir (father-in-law of Witness to support initial report/FIR
deceased Shamim Akhter)
2 Master Mohd. Dawood, Witness to receipt of dead body of
deceased and her clothes.
3 Mohd. Mansha Eye witness /circumstantial witness
4 Saleema Begum, Eye witness /circumstantial witness
5 Mohd. Saleem Eye witness /circumstantial witness
6 Munir Hussain Eye witness /circumstantial witness
7 Mohd. Yaqoob Eye witness /circumstantial witness
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8 Mansha Begum (mother-in-law of Eye witness /circumstantial witness deceased) 10 Bimla Devi Eye witness /circumstantial witness 11 Anita Kotwal Eye witness/circumstantial witness (Staff Nurse posted in Nowshera Hospital on 25.06.2007).
12 Subash Chander Eye witness/circumstantial witness (Nursing Orderly in Nowshera Hospital, on duty on 22.06.2007).
13 Mohd. Shabir (Husband of Hearsay witness.
deceased) 14 Babu Khan Circumstantial witness.
15 Zakir Hussain (brother-in-law/devar Circumstantial witness.
of deceased) 16 Zubaida Begum (Nanand of Circumstantial witness.
deceased) 17 Dr. M.L. Bhardwaj Witness to prove postmortem report 20 Rakesh Kumar Constable Witness to seizure of mobile phone. 22 Subash Chander HC 481/R Photographer in Crime Branch.
8. Before coming to the conclusion whether prosecution has successfully substantiated charges against the respondent/accused beyond hilt, we have found it pertinent to give a brief resume of the evidence led by the prosecution witnesses before the trial Court. The relevant portions of the testimonies of the prosecution witnesses are summarized as under:-
P R O S E C U T I O N E V I D E N C E :-
PW-1 Mohd Nazir (father-in-law of deceased) in examination-in-chief has deposed, that the deceased Shamim Akhter was his daughter-in-law, whose husband Mohd. Shabir is his real son. One year prior to the date of incident, the husband of the deceased had gone to Mumbai and was doing the work of labour there. The sister of the accused, who was married to Mohan Lal was his neighbourer. The accused used to come to their house and used to tease his daughter-in-law. The accused also used to ask the deceased to come with him, as her husband is living at Mumbai. This very fact was told to him by the deceased. He advised the accused not to do so with his daughter-in-law, as she was living all alone at her house. He also told the same to Mohan Lal, the brother-in-law of the accused as well as to the father of the accused to direct 6 CRAA No. 30/2015 the accused not to come to his house, but of no avail on the part of the accused. Despite this, the accused used to come to his house. He used to say that he had mobile and he would arrange to talk them with his son, who was living in Mumbai. Thereafter, the accused came to his house and forcibly kidnapped his daughter-in-law. He came to know about this fact when he went to the bed of his daughter-in-law to awake her. He had gone to the house of brother-in-law of the accused in search of his daughter-in-law, where the father of the accused had also come. He was told by Farooq that the accused has taken the deceased- Shamim Akhter to Chadyara forest, where he administered her poisonous substance to drink, from where she was taken to Seri hospital by his brother- Mohd Yaqoob and other persons, from there they were told to take the deceased to Nowshera, Hospital. Upto Nowshera Hospital, the deceased was saying that the accused has made her to eat some poisonous pills. He too reached Nowshera Hospital, where she was breathing her last. Thereafter, he filed the application/complaint with the police for the registration of the case. The contents of the application are correct. It is marked as EXPWMN. Police came on spot. Farad Maqboozgi of the dead body bears his signatures. It is marked as EXPWMN/1. Memo of seizure memo of clothes also bears his signatures. It is marked as EXPW MN/2. Police handed over dead body to him after post-mortem. Receipt of dead body also bears his signatures. It is marked as EXPWMN/3.In cross-examination, deposes, that eight years back, his son- Shabir was married to the deceased-Shamim Akhter and out of their wedlock, one daughter was born. One year prior to the death of Shamim Akhter, her husband-Shabir Ahmed was in Mumbai and during this period of one year, he never visited his house. There are two rooms, one veranda and one cowshed in his house. In one room, he, his wife and Zakir used to sleep. In other room, the deceased and her child used to sleep. There was no STD or phone in his 7 CRAA No. 30/2015 village. Only accused was having phone. All the family members used to talk with their son on phone of accused. The people of village also used to talk from the phone of the accused. The deceased told him 3/4 times that the accused used to talk in illicit way, so the accused be asked to mend her way. Despite this very fact, still the accused was visiting his house and used to remain there for hours together and used to talk with the deceased, however, he did not talk with deceased in his presence. There took place no quarrel or abusive altercation between him and accused with regard to his visiting in his house. The place from where the deceased was found, is about 2 Km away from his house and in between, there is no house. The deceased was absent from his house on that very day and not prior to that. No sound of noise or of walk was heard. The deceased did not talk with him, however, when he met with deceased, she was unable to talk. He was told by Salima and Mansha that the deceased was saying that accused had given the poison to her. Mohd. Farooq resides ½ mile far from his house. The place from where the deceased was found in a jungle, that place was about 2-2 ½ miles far from the house of Mohd. Farooq. He cannot tell as whether the deceased was pregnant or not. She was having good character. Shabir-his son told him that he would come to his home after six months, as he was engaged in a labour work. It is wrong to state that his daughter-in-law was illegally pregnant and due to shame, she committed suicide and a wrong case has been made against the accused. PW-2 Master Mohd. Dawood in examination-in-chief has deposed, that he knows the accused and the deceased. On 22.06.2007, he was at his home and the witness Mohd. Nazir alongwith another person came to his house at about 8/8 ½ in the morning for the search of Shamim Akhter. Thereafter, he went to his place of work and on the way, he received the phone that Shamim Akhter is lying in a jungle in an unconscious condition, over which he informed his 8 CRAA No. 30/2015 housemates to dial the relatives of the deceased about the same. He went to Nowshera Hospital and the deceased was breathing the last breath and few minutes thereafter, she died and her autopsy was conducted and other formalities were also conducted. Farad Maqboozgi of dead body EXPWMN/l bears his signatures. Seizure memo of clothes EXPWMN/2 and receipt of dead body EXPWMN/3 also bears his signatures. In cross-examination deposes, that the deceased was his niece and the distance between his house and of the in-laws of the deceased is about 3 KM and the jungle from the house of the deceased is on the opposite direction. He was told by Mohd. Mansha on phone that the deceased is lying in unconscious condition in the jungle and her relatives are to be informed so.
PW-3 Mohd. Mansha (eyewitness) in examination-in-chief has stated that he did not know the accused before the incident, but knows him after incident. He was also not knowing the deceased-Shamim Akhter, but his wife was knowing her. On 22.06.2007, at about 8 ½ AM, he was sitting in his home and he heard a voice from the jungle and the voice was saying "I am dying and give me water". On this, he wanted to go on spot, but keeping in view the existing situation prevailing in area, his wife did not allow him to go on spot. Thereafter, his wife-Saleema Begum went to the spot, from where he heard the voice alongwith water. He went on spot and saw the deceased. He enquired from his wife as who is she. She told that she is the daughter-in-law of Nazir. The deceased was talking at that time. On his inquiry as to what has happened to her, she said that a man has administered a poisonous substance to her. On his inquiry as to who was that person, she stated that Balbir Singh S/o Bhola Ram forcibly administered her half pill colored in black to her. She consumed half of the pill and the half was thrown out. She further stated the accused- Balbir had gone to some unknown place and left her there. The deceased was 9 CRAA No. 30/2015 alright, but she was vomiting. She was narrating that she be taken to the hospital and he took her to his house and he telephoned to Yaqoob and narrated the whole incident. He also said that Nazir-the father-in-law of the deceased be informed about this incident. Within ten minutes, Yaqoob's son, Ismail reached his house. They too enquired from the deceased, over which she narrated the same story. Thereafter, he asked his son-Altaf to call Muneer Hussain. He brought Muneer Hussian and Mohd. Hussain. In their presence, the deceased gave the statement about the occurrence. Thereafter, she was brought to road, from where through ambulance, she was taken to the Seri Hospital, where she was examined and was referred to Nowshera Hospital. He too went to Nowshera Hospital. She was vomiting and at 2 PM, she died. In the cross-examination deposes, that the name of the husband of the deceased is Mohd. Shabir, who has been doing the labour work at Mumbai for the last one year. At the time of death of the deceased, she was having a girl child of 2 ½ years. He cannot say whether the deceased and the accused was having illicit relations or not. The place from where the deceased was asking for the water is situated at the distance of 1 KM from her (deceased) house and that place is a thick jungle. Generally, there is no movement of the people at that very place. His statement was recorded 2nd day after the death of the deceased by police. His statement was again recorded after 3rd day of the death of the deceased. He told the police that the deceased was saying that the accused administered her pills. It is incorrect that in order to abort her pregnancy, she herself took pills. She was also saying that she was forcibly taken by the accused from her house at night. The deceased was also saying that the accused forcibly administered her pills at 5 AM. It is incorrect that the deceased was a loose character lady and she was having a sexual eye upon the accused, as she was liking him. That is why, after her death, the blame has 10 CRAA No. 30/2015 been put upon the accused. This is also wrong to state that due to this, his statement has been written at belated stage. He has not seen the half pill, which was thrown by the deceased. He cannot tell the type of pill. He does not know as to what the deceased and the accused were doing in the jungle, as he was at his home.
PW-4 Saleema Begum (eyewitness) in her examination-in-chief has deposed, that the deceased told her the name of the accused. It is the occurrence of about 3 ¼ years ago. She and her husband were at their house and at about 8 O‟clock in the morning, she heard the voice of a lady from the jungle "Mujay pani de do". When her husband tried to go for giving the water to her, she stopped him from going to the jungle, as she thought, there was era of militancy and it was not safe for her husband to go alone. She herself went to the jungle along with the water. When she reached the jungle and enquired from the lady as to who was she, she replied that her name is Shamim Akhter- daughter-in-law of Nazir. Thereafter, she came nearer to her and made her to drink the water. She enquired as to how she had reached there. She stated that Balbir Singh S/o Bhola Ram in the night took her from her house and brought her here. She further stated that Balbir had forcible administered a medicine of black colored pill to her and ran away. Thereafter, she started vomiting and she called her husband to reach on spot and he reached. Her husband also asked Shamim Akhter and she narrated the same story to him. They asked Shamim Akhter to walk, but she could not walk. Thereafter, her husband lifted her on his shoulders and brought her to her house. She and her husband dialed Yaqoob to come to their house and informed him about the occurrence. They also asked their son-Mohd. Altaf to call Munir Hussain, who came and brought Mohd. Hussain. Thereafter, in their house, Mohd. Yaqoob, Munir Hussain, Mohd. Hussain and Mohd. Salim came and they also enquired from Shamim 11 CRAA No. 30/2015 Akhter. The deceased repeated the same words, which were told to her. Thereafter, they lifted the deceased on cot and was taken to hospital at Seri in a Matador. She did not go along with them. Her husband told her that from Seri, the deceased was taken to Nowshera, where she died. She died due to consuming poison. They heard that the deceased and the accused were having illicit relationship. The deceased was having child of the accused in her womb, so the accused gave her poison. The husband of the deceased had gone to Mumbai for work of labourer. In cross-examination, she states that in village Sial, there resides 2/3 thousand persons. Hindu are in majority there. There can be more persons by the name of Balbir Singh in the village. At this time, it is 10:10, she has stated the time after seeing the clock in the Court room. It took 10 minutes to reach in the jungle. Her house is nearby the jungle and in between, there is a nallah. When she reached on spot, the deceased was sitting on a stone. She was sitting and vomiting. The deceased also vomited in her presence. She gave her water. The deceased was talking in „bakerwali‟ language. She (witness) also talks in „bakerwali‟ language. The deceased told her that Balbir Kumar S/o Bhola Ram brought her in the jungle, however, she did not tell completely. She narrated that the deceased administered her tablet at about 5.00 am in the morning and after some time, there was morning light. The deceased did not tell as to what they did during night in the jungle. The witness had gone to the house of Mohd. Ishaq, where she saw the deceased. The deceased was very beautiful by appearance, so she enquired with regard to the name of the deceased. She has no personal knowledge with regard to illicit relationship of the deceased with the accused. She does not know as to whether the husband of the deceased came to home after the death of the deceased or not. It is incorrect that the deceased asked her that she had taken the tablet herself. It is also incorrect that they prepared a false story after two 12 CRAA No. 30/2015 days of the death of the deceased as asked. When she had gone to the jungle to the deceased, her face was fade, however, there was no change in her color. PW-5 Mohd. Saleem (eyewitness) in examination-in-chief has deposed, that he knows the accused. On the morning of 22.06.2007, he went to the house of Munir Hussain at about 7 ½ O‟clock and he was working in his field. He went to him for exchange of the work, as he told him to help him in his work. After half an hour, the son of Mohd. Mansha, namely, Altaf came there and told that his father was calling him. Munir Hussain and he went to his house and saw Shamim Akhter was vomiting. Munir Hussain asked from that lady about the reason and she told him that at about 10:30 pm, she was forcibly brought to the jungle by the accused and they passed the whole night in the jungle. At 5 am in the morning, she was given a tablet by the accused, which was meant for intoxication. When she refused to take, the accused forcibly gave and administered the tablet to her. She took half of the pill and the accused asked her to remain there with a promise that he would come back with clothes from his house. She waited for him about half an hour, but the accused did not turn up. Thereafter, she started vomiting and felt giddiness. She doubted that the accused has given her some poisonous substance. She became unconscious and she made a call at the house of Mansha and they brought her from that very place. Shamim Akhter asked to them to take her to the hospital for good sake. Thereafter, she was lifted on a cot to the hospital, from where she was brought to Seri Hospital and he also accompanied her. In the hospital also, she was vomiting, from where she was taken to Nowshera hospital through an ambulance and about 11 O‟clock in the morning, she was admitted in hospital. At about 2 pm, she died. Two days after the occurrence, his statement was recorded and her husband came on the day of her funeral and before that, he did not know him. The husband of the deceased came prior to 13 CRAA No. 30/2015 that and he was not knowing him. In cross-examination, he states that Mohd. Mansha is a native of his village, but he is not related to him. He is married and is having two kids. It is wrong to state that the mother of Mohd. Mansha was a midwife. It is also wrong to state that the wife of Mohd. Mansha is also a midwife. From the house of Mansha to the Chadyara forest, there is a distance of half hour by foot. From the house of Shamim Akhter, the Chadyara jungle is at a distance of two hours on foot. In between the house of Shamim Akhter and Chadyara forest, there is no residential house. The people used to go to the jungle for bringing the wood and for grazing of cattle. There is a distance of more than half an hour by foot between the house of Mansha and the place where the deceased was found. The witness stated that the distance is more than to that of Court to Mandir Doodhadhari. This distance is more about 2 km. Munir Hussain is his maternal uncle and he occasionally goes to his house, as he met the son of Mohd. Mansha in the field of Munir Hussain. He told him there, so he did not think it proper to go to his house. Before the house of Mansha, there is house of Munir Hussain and thereafter, his house is situated. There is a distance of one hour by foot between his house and the house of Mansha. As he and Munir Hussain are the only muslims residing there, so Mohd. Mansha called them. The houses of other muslims community are at much distance. He did not know the deceased earlier. From Seri, Nowshera is much nearer than Sunderbani. The deceased was talking till 12/12 ½ hours. The Police Station is situated near to the hospital of Nowshera and the police came to hospital. The police enquired from the deceased. He narrated to the police that the deceased told him that the accused gave her a pill and promised to return back after half an hour, so that he may bring the clothes for her. When the accused did not come, she doubted that the accused has given her a poisonous pill, but this very fact has not been mentioned in his 14 CRAA No. 30/2015 statement recorded under Section 161 Cr.P.C. He does not know as to whether the wife of Mansha tried to commit miscarriage of the deceased and the matter deteriorated. He has stated the same facts, whatsoever he heard from the mouth of the deceased.
PW-6 Munir Hussain (eyewitness) in examination-in-chief has deposed, that he knows the accused and also knew the deceased, but she was not related to him. On 22.06.2007, at about 8 am, he was informed through Altaf, the son of Mansha. He went to his house at Chadyara. The deceased Shamim Akhter was lying on a bed and was alive. Mansha told him that he has brought this girl from a jungle. He inquired from the deceased over which she said that a black coloured pill was given to her by the accused. The deceased further stated that she was at her in-laws house, from where she was forcibly kidnapped towards Chadyara forest and at about 5.00 am, she was given a pill by the accused and thereafter, the accused left. This very fact was told to him by the deceased. Thereafter, the deceased was taken to be on road, from where through a matador, she was brought to Seri Hospital, from where she was referred to Nowshera hospital. He also accompanied the deceased uptill Nowshera in ambulance, where she was treated upon and the deceased died on that very day at about 2 O‟clock. The dead body of the deceased was taken to the house of her in-laws. The husband of the deceased was in Mumbai and he cannot say as to whether he was there in Mumbai for the last one year or not. In cross-examination has stated, that his village is at the border line and there is no army patrolling there at a distance of 5 kms. Army personnel used to patrol. There is no patrolling in Chadyara jungle. The deceased did not tell him as at what time, she left the house of her in-laws, but she said that she was brought by the accused. The place where the deceased was found is at a distance of 2 KMs from her house. The deceased told him that she was having 15 CRAA No. 30/2015 illicit relations with the accused, so she accompanied him. For that reason, the deceased went along with the accused at that very place in the night. This was told to him by the deceased. There is no frequent visit of general public in Chadyara forest. He does not know whether the accused and the deceased used to go in jungle frequently or not. The deceased did not tell him as to how long, she was having the relations with the accused. He came to know about the relations of the deceased and the accused on that very day. The police also recorded his statement. He told the police that there was illicit relationship of accused with the deceased, as was told to him by the deceased. However, these facts have not been mentioned in his statement recorded under Section 161 Cr.P.C. His house is situated at a distance of ½ KM from the house of Mansha. It would have taken 8-10 minutes in reaching to the house of Mansha. He cannot say as to since how long the deceased was in the house of Mansha, when he reached his house. He did not get treatments by herbs. It is incorrect that he has given the statement on the instance of Mansha. He did not see as to whether the deceased was wearing the watch or not. He remained at the house of Mansha for 10/15 minutes. Thereafter, the deceased was brought on the road. Mansha asked him to enquire from the deceased as to what had happened with her. It is incorrect that the wife of Mansha administered the medicines for miscarriage. However, when the matter became complicated, he was called so that the allegation may be leveled against the accused. He was not having so much introduction with deceased, so he cannot tell about her character.
PW-7 Mohd. Yaqoob (eyewitness) in examination-in-chief has stated, that he knew the deceased. On 22.6.2007, he was at home, he got telephonic message at about 8 AM from Mohd. Mansha, who stated that the daughter-in- law of Mohd. Nazir has been administered some poisonous substance by the 16 CRAA No. 30/2015 accused. He was asked to come soon, so that she may be taken to the hospital. When he reached the house of Mohd. Mansha at Chadyara, he found the deceased lying on bed and was vomiting. At that time, Mohd. Mansha, Munir Hussain and Mohd. Salim were present. She was brought to Seri Hospital, from where through ambulance, she was brought to Nowshera hospital. When he enquired from the deceased at the house of Mansha, she stated that the accused had taken him to the jungle in the night and at 5.00 am in the morning and administered her a poisonous substance. Mohd. Mansha brought her in his home from the jungle. In Nowshera hospital, she was treated. The deceased used to talk in the hospital, but that was not understandable. After 1 ½ hour reaching in the hospital, she died. After conducting of post-mortem, the dead body was given to Mohd. Nazir. The husband of the deceased was working in Mumbai. At the time of post-mortem, the baby was found in the womb, as there was child of the accused in the womb of the deceased, so she was given poison in order to save himself. In cross-examination has stated, that the name of husband of the deceased is Mohd. Shabir, who was working in Mumbai prior to 1 year from the death of the deceased. The husband of the deceased never turned up during one year. The accused was her neighbourer. The deceased was having no telephone and used to phone to her husband through the phone of the accused. The parents-in-law and one daughter of the deceased were living there in the house. There were two rooms in the house of the deceased. His house is situated about 1 KM far from the house of the deceased. He was told by Mansha through telephone that the deceased has administered some poisonous thing. His statement was recorded on 24 th. The police came on the day of death of the deceased and enquired from him on that day, however, his detailed statement was recorded on 24th. He has not seen the statement recorded by the police dated 22nd March in the Court. On phone, 17 CRAA No. 30/2015 Mansha told him that the deceased has been administered some poisonous substance, but in the statement under Section 161 of Cr.P.C, this is incorrect. After 10 minutes of receiving of phone call, he reached at the house of Mansha. The place from where the deceased was brought to the house of Mohd. Mansha is at a distance of 1 KM. He cannot tell as to why Mohd. Mansha had gone to jungle. Mohd. Mansha, his wife and other persons, the names of whom he does not know, brought the deceased from the jungle. The road is situated from the house of Mansha at 1 ½ hours distance. He does not know as to for how many period, the deceased was in the house of Mohd. Mansha prior to his reaching. When he reached in the house of Mohd. Mansha, Munir and Salim were already there. He had no relation with Mohd. Mansha. The deceased was taken on a cot from the house after his arrival in the house of Mansha, because there were no sufficient persons in the house of Mohd. Mansha for taking the deceased to hospital, so he was called. When he reached in the house of Mohd. Mansha, the deceased was vomiting. He cannot tell as to how the deceased was brought from the jungle. Perhaps she was lifted. He does not know as to when the accused took the deceased in the jungle, however, he heard from the father-in-law of the deceased that the accused took the deceased in the jungle in the night after 10 PM. The accused took the deceased on that day for the first time. The deceased only told him that the accused administered her some poisonous thing and detail, she will tell after recovery. Seri is situated 20-25 KM from the Sial, whereas Nowshera is situated 18 KM far from Sial. They did not go to the doctor at Sial, however, they had gone to doctor at Seri. In his presence, the deceased did not give any statement to doctor at Seri because he had gone for taking the ambulance. He cannot tell as to whether it is correct that the deceased stated to the doctor at Sial that the accused administered poisonous substance to her as he has given 18 CRAA No. 30/2015 statement 3 ½ years ago. There are separate hospitals at Seri and Sial. The deceased lost his consciousness during treatment at Nowshera. He does not know as to whether the sample of baby fetus found during the post-mortem in the body of the deceased. The husband of the deceased was to return home after one month. It is incorrect that the deceased was having illicit relationship with other person and she was having baby in the womb, as his husband was about to come, so she took poisonous substance in embarrassment. This is wrong to state that he prepared a false case when a baby was found in the body of the deceased during post-mortem.
PW-8 Mansha Begum (eyewitness, mother-in-law of deceased) has stated that she knows the accused. It is the occurrence of 3 ½ years ago. Her daughter-in-law, deceased- Shamim Akhter, whenever used to go to jungle and for bringing water, the accused used to say some illegitimate words to her. She complained this very fact to the sister of the accused, namely, Janko Rani. The sister of the accused assured her that the accused would not do such type of activities in future. She also complained with Mohan Singh, the husband of sister of the deceased, in this regard. During those days, the husband of the deceased, their son, was doing labour work at Mumbai. On the day of occurrence, she and her husband-Mohd. Nazir were sleeping along with their animals in cattle-shed, whereas their daughter-in-law-Saleema Akhter was sleeping in the animal room. At 4 am in the morning, when her husband got awaken, he could not find the deceased on her bed. They searched for her. At about 8 am, Mohd. Farooq told her that the deceased was in house of Mohd. Mansha. Her husband had gone to the house of Mohd. Mansha. She was taken to Nowshera from there. She remained at her house. The deceased died in the hospital at 2 pm at day time. Thereafter, the dead body was brought to her house. It was heard that the accused administered poisonous tablet to the 19 CRAA No. 30/2015 deceased with the result, she died. In cross-examination has stated, that the marriage of the deceased was performed with her son 8/9 years back from the day of occurrence and out of the wedlock, one daughter was also born. One year prior to her death, her husband went to Mumbai for labour work. The accused started teasing the deceased after her husband left. In her presence also, the accused many times teased the deceased and he was having illicit relations with the deceased. The deceased used to restrain the accused from teasing, but he never mends his ways. She used to ask the accused not to talk with her in illegitimate language. He used to come to her house just to meet her. The deceased had never gone to the house of the accused. The deceased and the accused used to meet each other in the jungle and they used to meet each other in day time as well as night. The deceased first time got missed from the house on the day of occurrence. They searched for the deceased in the nearby jungle. Farooq told them by calling that the deceased is lying in the house of Nisha Mohd. The deceased had taken some poisonous thing. The wife of Mohd. Mansha is a house wife and she does not do the work of medicine and also never deals with desi medicines. She cannot tell the time from watch, as she is illiterate, however, by speculation, there would be 10:30 at this time. The parents of the deceased as well as her brothers are alive. They were informed after the death that the deceased that was having illicit relationship with the accused. The is wrong to state that the deceased was pregnant and in order to miscarry her, Mohd. Mansha and her wife had given some medicine, due to which she died, however, it is incorrect that here was pregnancy of 3 months at the time of death of deceased that the baby was of Balbir Kumar.
PW-10 Bimla Devi (eyewitness) has stated in her examination-in-chief that her husband is a conductor and he is also having a shop. Whenever her 20 CRAA No. 30/2015 husband used to go for contractual work, she used to run the shop. About quarter to four years back, she was sitting in her shop at Sial and Mohd. Mansha brought a lady in a cot along with other persons and that lady was taken away in a Matador. She saw the said lady in an unconscious condition and did not utter any word to her. The witness was declared hostile and the prosecution was allowed to cross-examine her and in the cross-examination by PP states that she does not remember as to whether her statement was recorded before judge sahib at Nowshera in the Court or not. She does not sign in scripts. On the statement recorded under Section 164 Cr.P.C, there are no signatures of her. The contents of the statements are not correct. She does not know the accused. The cot over which a lady was lying, was stationed in front of her shop and she did not give her water to drink. The police did not take her to Nowshera Court. It is wrong to state that she is giving the wrong statement in order to save the accused. In the cross-examination, she states that she knows Mohd. Mansha and his wife and she does not know whether Saleema Begum does the work of midwife or not.
PW-11 Anita Kotwal (eyewitness) has deposed, that she was posted as Staff Nurse in the hospital at Nowshera on 25.06.2007. From the period of March, 2007, she continued to be posted there. On 22nd of June, one lady, namely, Shamim Akhter was brought in the hospital. She gave first aid to her. During treatment, that lady did not tell anything to her. At this stage, this witness was declared hostile and on cross-examination by PP stated that it is incorrect that during treatment, the deceased stated that Balbir Singh administered poisonous substance.
PW-12 Subash Chander (eyewitness) has deposed, that on 22.06.2007, he was on duty as Nursing Orderly in hospital, Nowshera. When the deceased- Shamim Akhter was brought to Nowshera hospital, she was asked by the nurse 21 CRAA No. 30/2015 of the staff as to what has happened, over which Shamim Akhter said "Bachao". Thereafter, she could not speak any word. This witness was declared hostile by the PP and was allowed to ask the question. In his cross- examination, he states that Shamim Akhter did not tell to Anita Kotwal in his presence that accused administered her poison as asked. The deceased was not able to speak and she died in the hospital, but the said deceased only said that she be saved. It is incorrect that in order to save the accused, he is giving a wrong statement.
PW-13 Mohd. Shabir (husband of deceased) in his examination-in-chief has deposed, that he knows the accused and the deceased. The deceased was his wife. He was working at Mumbai as a labourer continuously for one year prior to the occurrence. The accused used to talk to him on phone from the house and he also made his deceased wife to talk to him through phone. On 15.06.2007, the accused asked him as to when he is coming back and he told that on first day, he would come on leave. On 22.06.2007, he was informed by Mohd. Latief through phone that his wife has been given the poisonous substance by the accused and she has died. On 24th June, 2007, he left Mumbai for his house and reached his house on 26 th June, 2007. In his house, his parents told him that in his absence, the accused used to come to his deceased wife and his parents told him the occurrence. In cross-examination, has stated that on 22nd June 2007 Mohd. Latief told him at about 2 ½ PM that his wife has died. He came to Nowshera Police Station on 27 thand 28th June 2007, when his statement was recorded. He was told by Mohd. Latief that the accused has given the deceased some poisonous substance, whereas in his statement under Section 161 Cr.P.C, it has been recorded that Shamim Akhter has consumed some poisonous medicine. It has wrongly been written in his statement under Section 161 Cr.P.C that Mohd. Latief, at 2 ½ PM, telephoned him. It has been 22 CRAA No. 30/2015 wrongly written in his statement under Section 161 Cr.P.C that Mohd. Latief telephoned him at about 5 PM. He never came to his house continuously for one year from Mumbai prior to the death of his wife. At the time of death, the deceased was having a fetus. This is wrong to state that the deceased consumed the poison to save her skin from being insulted. He cannot say whether the mother of Mohd. Mansha does the work of midwife. He also does not know whether the wife of Mohd. Mansha also does the work of midwife. He is having one daughter and her delivery was conducted by his mother at his home.
PW-14 Babu Khan in his examination-in-chief has stated, that he does not know the accused, but knew the deceased, who died ¾ years back. Her husband was at Mumbai, but he has no knowledge about the death of the deceased. He only participated in her funeral procession. At the stage, the witness was declared hostile and PP was allowed to ask the questions and in cross-examination by PP states that the deceased has no access to his house and before her death, she never came to his house. From where her dead body was lifted, he does not know, but he has heard that her dead body was lifted from Chadyara forest. He does not know whether the deceased died in the hospital or not. In cross-examination by the defense, he states that he knows a little bit about Mohd. Mansha, but does not know about his wife and mother. In his house as well as in the village, no local prescription was prescribed for treatment.
PW-15 Zakir Hussain (brother-in-law/devar of deceased) in examination-in- chief has deposed, that he knows the accused and the deceased who was his sister-in-law. In the year 2007, he was the student of 10th class. Whensoever he returned back from his school, he used to see the accused grazing his goats near his house. A number of times, he saw the accused doing sexual mischief 23 CRAA No. 30/2015 with his sister-in-law. His brother, on those very days, was continuously at Mumbai. With regard to this fact, he informed his brother on phone and also his other family members as well as to his sister-in-law (deceased), but she did not mend her ways. One night, they were sleeping in their house and the accused kidnapped her and took her to Chadyara forest. His sister-in-law became pregnant and in order to get rid of himself, the accused gave some poison to his sister-in-law. The deceased was found near the house of Mohd. Mansha, who informed Farooq and Farooq told him so. They brought the deceased to Nowshera Hospital, where she died on the same day. In cross- examination has stated that accused reside at a distance of 02 KMs from his house. The accused is a farmer and developed illicit relations with his sister- in-law in the absence of his brother. He saw 2/3 times the accused indulging in sexual act with the deceased. Only deceased used to prepare the meals at their house. He was badly affected with the illicit relations of the deceased with the accused. He was minor and on seeing him, they used to run away separately. He told about this fact to his parents, but they never inquired from the deceased about that very fact in his presence, as he was minor. From his house, the Chadyara forest is at a distance of 03 KMs and first of all, there comes a jungle and thereafter, the house of Mohd. Mansha. In their village, no women perform the work of midwife. He has seen the wife of Mohd. Mansha, but he has not seen the mother and Mohd. Mansha. Mohd. Mansha and his wife do no work of desi treatment. They have no relations with Mohd. Mansha. The day the deceased was kidnapped, 1 ½ months afterwards, his brother was to return back to the village from Mumbai. It is wrong to state that to save her skin, the deceased went to the house of Mohd. Mansha to consume some desi medicine for miscarriage and due to which, she died. He did not go to the jungle and they came to know about the missing of the deceased in the 24 CRAA No. 30/2015 morning. The deceased told the wife of Sewa Shah that the accused administered her poison and his wife told him so afterwards. PW-16 Zubaida Begum (sister-in-law/Nanand of deceased) in examination- in-chief has deposed, that she knows the accused. Shamim Akhter was her sister-in-law. Mohd. Shabir-the husband of the deceased is his brother. It is the occurrence of 5 years ago, her husband had gone to Mumbai for labour work. One year prior to occurrence, in the house, there were her parents and the deceased. She is married and resides at her home. She resides near to the house of her parents. She used to go to her parents‟ house daily. Prior 1-2 days of occurrence, she was at her parental house. The accused gave a missed call to Mohd. Shabir. They talked with Mohd. Shabir. She left from there and the accused remained there. The accused used to come to her parents‟ house daily, however, the accused did not do anything in his presence. The accused took the deceased one night in the jungle. After the death of the deceased, she came to know from her parents that the accused took her to jungle and administered medicine due to which she died. In cross-examination has stated, that her brother lives at Mumbai. For one year, he did not come back to home. When the deceased died, she was pregnant and was having child by accused. She has four sons and all are born through midwife, who was her mother. She knows Saleema-wife of Mohd. Mansha. She does not know as to whether she does work of midwife or not. The deceased did not go to jungle in her presence. Her house is in the jungle. It is incorrect that the deceased in order to miscarry her, had gone to the house of Mohd. Mansha, as suggested. In the morning, the parents told that the accused had taken deceased in the jungle. PW-17 Dr. Mohan Lal Bhardwaj (Medical Officer PHC Langer) has stated in examination-in-chief, that he examined Mst. Shamim Begum on 22.06.2007 and found her physically as well as mentally unfit to give the 25 CRAA No. 30/2015 statement. The certificate on record has been issued by him and bears his signatures. The same is correct and is exhibited as EXT-P-17/1. On 22.06.2007, he along with Dr. Naresh Kumar conducted the post-mortem of Mst. Shamim Akhter. The detail of observation has been recorded in the post- mortem report. The report comprising two leaves and bears his signatures, apart from this signature of Dr. Naresh Kumar. He has gone through the report. The observations recorded therein are correct. The report is exhibited as EXT- P-17/2. Thereafter, in the month of October probably, the final opinion about the cause of death was given by him as well as Dr. Naresh Kumar. The opinion bears his signatures apart from that of Dr. Naresh. It is exhibited as EXT-P- 17/3. The copy of the post-mortem report submitted today by the Record- Keeper SDH Nowshera has also been issued by him under his signatures. The observations recorded in the post-mortem report are also correct. This copy was prepared by him on the asking of BMO Nowshera after the record was summoned by the Court. This post-mortem report is exhibited as EXT-P-17/4. In cross-examination by the defence counsel, has stated that for 3/4 months, he was attached in SDH, Nowshera in the year 2007. He was detached from SDH, Nowshera in 2007 itself. FSL report No. 1177/FSL on record was addressed to BMO, Nowshera. A photostat copy of the said report was provided by BMO to him for giving final opinion about the cause of death. The report was sent to him through a Nursing Orderly. After he submitted the post-mortem report to the proper quarters, a copy of the same was retained by him. The report submitted today was prepared by him a fresh from that copy. EXT-P-17/2 and EXT-P 17/4 have been compared by him. Both these reports bears his signatures, but EXT-P-17/2 has been signed by Dr. Naresh Kumar as well and EXT-P-17/4 has not been signed by Dr. Naresh. These reports differ in texture also, though the final opinion is same in both the reports. EXT-P- 26 CRAA No. 30/2015 17/3 forms part of EXT-P-17/2. The conclusion of the Gynecologist recorded in EXT-P-17/4. EXT-P-17/2 read with EXT-P-17/3 is the original post-mortem report. In EXT-P-17/4, he has reproduced the opinion of the Gynecologist partly, but the same does not bear his signatures. He is in medical profession since last 32 years. Organic phosphorus is always consumed through a mouth. It cannot be injected. It is injectable as well and this type of poison can be administered by mixing it with other substance. If the poison is administered through injection, it should be more painful. In case of Organic phosphorus poisoning the clinically symptom of lungs and heart, but would be turned bluish. If the concentration would be less, the effect would be visible on lungs and heart, but if the concentration of poison is more, then there would be no visible effect on heart and lungs. During post-mortem, he opened the body of the deceased. Lungs, heart, food, pipe, wind pipe etc. found to be in normal condition. Some sort of swelling was found on the inner lungs of the stomach and amongst the food material, some Rajmah and pieces of maize bread were found inside the stomach. There was no fluid found inside the stomach. All these things do not find mention in the post-mortem. In all cases, Organic phosphorus leads to kidney failure. In this case, he examined the kidney, but it was not a case of kidney failure. He is not sure whether it was not kidney failure because he did not examine the kidney under microscope. He did not dissect the kidney. It was his duty while conducting the post-mortem to examine the kidney meticulously, but he did not do so. If Organic phosphorus is consumed orally, it can cause abrasion and swelling in the food pope if the concentration is more, but it would cause only if the concentration is less. In this case, he examined the food pipe of the deceased. There was swelling, but there was no abrasion. There is no mention in these, found in the post-mortem reports, which implies that it was a case of poisoning of low concentration for 27 CRAA No. 30/2015 prolonged time. This was virtually and usually a case of Organic phosphorus poisoning because even though being a case of poisoning with less concentration, there was no clinically symptom in heart and lungs, although both should have turned bluish. The post-mortem reports rather submitted by him are incomplete because most of the findings have been recorded. PW-20 Rakesh Kumar Constable, on questioning by PP in examination- in-chief has stated that in the month of August 2007 he was posted in Police Station, Nowshera. On 04.08.2007, PSI-Shamim Ahmed produced the detail of phone No. 9419630882 to SHO. It was seized and the seizure memo was prepared, which bears his signatures. It is marked as Ext.P-20/1. This detail was brought from BSNL office, Jammu. In cross-examination, he stated that the detail of BSNL, which was seized has not been seen today in the Court by him. From the above phone number, calls were initiated. He does not remember the number on which these calls were received.
PW-22 Subash Chander HC No. 481/R has stated that in the year 2007, he was posted in Photo Section of Crime Branch, Nowshera. He has taken the photographs of the dead body on the instructions of SHO, Nowshera in Nowshera Hospital. He took 5 photographs. On the next day, he also snapped the place of occurrence. He has seen 12 photographs in the file. These are marked as „A‟ to „L‟ continuously. In cross-examination, he stated that he had gone to jungle for taking the photographs. He had not taken any photographs of vomiting.
PW-Ashok Kumar, (Sr. Assistant) has stated in examination-in-chief that he is working as Record Keeper in Sub District Hospital Nowshera. On the order of BMO Nowshera he has produced the post-mortem report of Shamim Akhter bearing No. 65/2007 dated 22.06.2007 and copy of the Report No. 1177/FSL dated 04.10.2007. The register of the post-mortem is present in SDH 28 CRAA No. 30/2015 Nowshera, however, the detail of the post-mortem of Shamim Akhter is not present in it. The detail, which he has produced today in the Court, has been obtained from Dr. M.L. Bhardwaj.
9. We have heard Sh. Bhanu Jasrotia Ld. GA for appellant/state & Sh. Raghubir Singh Ld. Counsel for respondent/accused. We have perused the record of the case meticulously and have scanned the depositions of prosecution witnesses in depth. It is the cardinal principle of criminal jurisprudence that in every criminal case, there should be motive to commit the crime. The motive plays a vital role in a case which is rested upon circumstantial evidence. In the case in hand, the prosecution has produced two (2) sets of evidence in order prove it‟s case against respondent/accused. First set of evidence to prove the motive of respondent/accused in the case in hand to commit the crime is, the statements/depositions of in-laws of the deceased made before the trial court viz; PW1-Mohd. Nazir (father-in-law of the deceased), PW8-Mansha Begum (mother-in-law of the deceased), PW15- Zakir Hussain (Dewar of the deceased) and PW16-Zubaida Begum (sister-in-law/Nanand of the deceased). Second set of evidence relied by the prosecution are the testimonies of witnesses viz; PW-3 Mohd Mansha, PW-4 Saleema Begum, PW-5 Mohd Saleem, PW-6 Muneer Hussain, PW-7 Mohd Yaqoob, PW-10 Bimla Devi, PW-11 Anita Kotwal & PW-12 Subash Chander (Nursing Orderly) before whom deceased is alleged to have made oral dying declaration which as per the prosecution version being the incriminating evidence against the accused, has proved the guilt of accused/respondent for commission of offences attributed to him.
10. The first set of evidence relied by the prosecution to prove the motive to commit crime by respondent/accused, is the depositions/testimonies of 29 CRAA No. 30/2015 prosecution witnesses recorded before the trial court in the nature of PW1- Mohd. Nazir (father-in-law of the deceased), PW8-Mansha Begum (mother-in- law of the deceased), PW15- Zakir Hussain (brother-in-law/Dewar of the deceased) & PW16-Zubaida Begum (sister-in-law/Nanand of the deceased). PW1-Mohd. Nazir (father-in-law of the deceased) in examination-in-chief has testified before the trial court that the accused used to come in the house of Mohan Lal who was his neighbourer and used to tease his daughter-in-law, he advised the accused not to do so but despite this the accused used to come to his house and forcibly kidnapped his daughter-in-law, he came to know about this fact when he went near the bed of his daughter-in-law to awake her, he was told by one-Farooq that the accused has taken the deceased to Chadyara forest where he has administered her a poisonous substance to drink, deceased was taken to Seri Hospital by his brother-Mohd. Yaqoob and other persons from there they took the deceased to Nowshera Hospital. In cross-examination, he has deposed that the deceased told him 3-4 times that the accused used to talk to her in illicit way. PW8-Mansha Begum‟s (mother-in-law of deceased) evidence is to the extent that deceased used to go into jungle for bringing water and the accused used to say some illegitimate words to her, on the day of occurrence she and her husband were sleeping along with their animals in cattle shed whereas their daughter-in-law was sleeping in the animal room and at 4 a.m, in the morning when her husband woke up he could not find the deceased on her bed and searched for her and at about 8 a.m one Mohd. Farooq told them that the deceased was in their house. In cross-examination, she has deposed that the accused used to tease her daughter-in-law in her presence, deceased and accused were having illicit relation and they used to meet each other in a jungle. PW15-Zakir Hussain (Dewar of the deceased) & PW16- Zubaida Begum (sister-in-law/Nanand of the deceased) in one voice have 30 CRAA No. 30/2015 deposed that they had seen 2-3 times the accused indulging in sexual act with the deceased. Depositions of PWs 1,8,15 & 16 namely, Mohd. Nazir, Mansha Begum, Zakir Hussain and Zubaida Begum clearly demonstrate that there were illicit relations between the deceased and the accused, but on the fateful night of 21/22.06.2007 during midnight, none of them saw the accused kidnapping the deceased and administering poisonous substance to her. All the aforesaid witnesses as per prosecution version are the eye witnesses to the occurrence, but none of them have seen accused/respondent kidnapping the deceased and administering her poisonous substance and committing her murder. Deposition of PW1-Mohd. Nazir (father-in-law of the deceased) clearly depicts that one-Farooq Ahmed told him that the accused has kidnapped the deceased in the Chadyara forest and administered poisonous substance to her. The said Farooq Ahmed has neither been examined by the Investigating Officer (I/O) under Section 161 Cr.P.C during the course of investigation, nor listed as witness in the challan nor otherwise examined in the court during trial. The said Farooq Ahmed was the most material star witness of the prosecution, who was eyewitness to the occurrence of kidnapping of the deceased by the accused and administering of poisonous substance to the deceased by the accused and who gave information to PW-1 Mohd Nazir (father-in-law of deceased) regarding the kidnapping and murdering of the deceased by the respondent/accused. Failure of the Investigating Officer (I/O) in not recording the statement of Farooq Ahmed u/s 161 Cr.pc during investigation or getting his deposition recorded before the trial court, is a serious/huge lacuna in the prosecution case, which casts serious doubt upon the genuineness, truthfulness & credibility of the prosecution case, making the prosecution story highly tainted and doubtful, the benefit of which goes to the respondent/accused. 31 CRAA No. 30/2015
11. The second set of evidence relied by the prosecution is in the form of "oral dying declaration" made by the deceased before her death in presence of PWs 3,4,5,6, 7,10,11&12 , namely, Mohd. Mansha, Saleema Begum, Mohd. Saleem, Munir Hussain, Mohd Yaqoob, Bimla Devi, Anita Kotwal & Subash Chander. It is apt to reiterate here, that PWs 3,4,5,6, 7, namely, Mohd. Mansha, Saleema Begum, Mohd. Saleem, Munir Hussain & Mohd Yaqoob in one voice have deposed before the trial Court that the deceased Shamim Akhter was searched and found in the jungle and when she was enquired as to how she reached there she stated that the accused Balbir Singh S/o Bhola Ram in the night took her from her house and brought her in the jungle where he forcibly administered medicine of black coloured pill to her and ran away, she started vomiting and they gave her water, deceased was talking in bakerwali language but was not telling completely. Bare perusal of the depositions of aforesaid witnesses clearly demonstrate that deceased had made oral statement/declaration before them. The law relating to dying declaration, it‟s relevancy, admissibility and probative value is fairly settled. Section 32 of the Evidence Act does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death. To make such statements as substantive evidence, the person or the agency relying upon it is under obligation to prove the making of such statement as a fact. Dying declaration cannot be equated with the evidence of an accomplice. When the dying declaration is made before a doctor, the doctor has to give a certificate that the patient was fit to speak and give declaration with regard to his cause of death. Fitness of the person, making dying declaration is sine-qua-non for relying upon a dying declaration as substantive piece of evidence. It is trite law, that dying declaration may be oral or in writing. A dying declaration must be closely scrutinized as to its truthfulness like any other important piece of 32 CRAA No. 30/2015 evidence in the light of facts and circumstances of the case bearing in mind that the statement is made by a person who has not been examined in the Court on oath, and he is not subjected to cross-examination in the Court also, and there should be consistency with the person who recorded the dying declaration and the witness, if any, and the doctor with regard to fitness of the patient. As already stated, that the fitness of the deceased who made oral dying declaration is sine-qua-non before relying upon such dying declaration as substantive piece of evidence. PW10-Bimla Devi (eye witness) has stated before the trial Court that about quarter to 4 years back she was sitting in her shop at Sial and one-Mohd. Mansha brought a lady in a cot alongwith other persons, that lady was brought in a Matador and she saw the said lady in an unconscious condition and even the said lady did not utter any word to her. PW11-Anita Kotwal (Staff Nurse, posted in SDH Nowshera on 25.06.2007) has deposed that on 22.06.2007 the deceased Shamim Akhter was brought in SDH Nowshera, but she did not utter a word to her. PW17-Dr. M.L. Bhardwaj, who has examined the injured/deceased on the same day and has even furnished a CertificateEXT-P-17/1 has stated that the deceased was physically as well as mentally unfit to give a statement. Even the complainant namely Mohd. Nazir (PW1) while lodging written complaint in police upon which the FIR was registered, has endorsed in the said complaint that the deceased did not talk. Even the deposition of PW17-Dr. M.L. Bhardwaj clearly prove that the deceased was physically and mentally unfit to give any statement. So, in light of the evidence of PW-10 Bimla Devi, PW-11 Anita Kotwal Staff Nurse & PW-17 Dr. M.L. Bhardwaj, it stands proved beyond reasonable doubt that the deceased was not physically as well mentally fit to make any statement. Therefore, the depositions of PWs 3, 4, 5, 6, & 7 namely, Mohd. Mansha, Saleema Begum, Mohd. Saleem, Munir Hussain and Mohd. Yaqoob by no 33 CRAA No. 30/2015 stretch of imagination inspire confidence in the mind of this Court that any such oral declaration was made by the deceased in fit state of mind, hence, their depositions being untrustworthy & unreliable are inadmissible in evidence. The case of the prosecution to the extent of oral declaration made by the deceased is unbelievable in the manner projected.
12. It is to be borne in mind that the occurrence has taken place during the midnight of 21/22/06/2007 and the deceased has died in Nowshera Hospital on 22/06.2007. PW8-Mansha Begum (mother-in-law) was very much available at her home, however, her statement was recorded by the Investigating Officer (I/O) on 24.06.2007 two days after the occurrence. Similarly, the statements of PW15- Zakir Hussain (Dewar of the deceased) and PW16-Zubaida Begum (Sister-in-law/Nanand of the deceased) have been recorded by the Investigating Officer (I/O) on 16.07.2007 after the delay of 24 days of occurrence. FIR in the case in hand has been sent to Magistrate on 25.06.2007 and even prior to the sending of the FIR to the Court, the statement of all the material witnesses have been recorded on 24.06.2007. Law is well settled that delay in sending FIR to Magistrate and delay in recording the statements of the prosecution witnesses have to be explained by the prosecution. In the case in hand, the Investigating Officer (I/O) has not been examined, so the aspect of delay has remained unexplained, which causes serious doubt regarding the creditworthiness and genuineness of the prosecution case. In the present case, for non-examination of the Investigating Officer (I/O), FIR, Site Maps and other relevant documents have remained unproved. Non-examination of I/O has left the prosecution case in lurch, meaning thereby, that prosecution has utterly failed to bring home the guilt of respondent/accused beyond hilt. 34 CRAA No. 30/2015
13. On the examination of the entire evidence aforesaid, we are of the opinion that it would be highly difficult to conclusively show the involvement of the respondent/accused in the crime beyond reasonable doubt. In a criminal trial, it is the duty of the Court to ensure that mere conjectures or suspicion do not take the place of the legal proof. Suspicion, however, strong or probable it may be, is not a substitute for legal proof required to substantiate the charges against the respondent/accused for commission of crime. It would be travesty of justice to rely upon the suspicion and conjectures as adduced by the prosecution in the case in hand. From the depositions of prosecution witnesses discussed aforesaid, it is not clearly discernible that the deceased was kidnapped and murdered by the respondent/accused.
14. On the basis of aforesaid evidence adduced by the prosecution, we hold, that there is no legal evidence on record to prove that the respondent/accused is the mastermind of the kidnapping and murder of deceased Shamim Akhter. The direct as well as the circumstantial evidence relied upon by the prosecution are not strong enough, indicating the involvement of the respondent/accused in the commission of crime. The witnesses examined by the prosecution have not been able to putforth in their evidence a ring of truth so as to inspire confidence in this Court. The evidence of prosecution witnesses is, therefore, qualitatively and quantitatively insufficient to bring nexus between the respondent/accused and the commission of offences indicted against him. This renders the entire story of prosecution as incredible and unbelievable in the manner projected. On proper assessment, evaluation and estimation of the evidence adduced by the prosecution, the evidence appears to be weak, fragile, lacking credibility, does not prove the connecting link between the respondent/accused and the commission of offences indicted against him and is 35 CRAA No. 30/2015 based on surmises and conjectures. It would be highly dangerous and hazardous to hold the respondent/accused guilty of offences alleged against him on the basis of weak, shaky and unacceptable evidence. The whole case of the prosecution, therefore, becomes doubtful.
15. For the foregoing reasons and discussion, the prosecution has miserably failed to prove the guilt of the respondent/accused beyond reasonable doubt for commission of offences u/ss 364/302 RPC. We do not find any merit in the appeal. The trial Court of Ld. Principal Sessions Judge Rajouri has rendered a reasoned judgment of clean acquittal dated 31.07.2014 against the respondent/accused, the same neither suffers from any legal infirmity or impropriety and nor calls any interference from this Court. Accordingly, the judgment impugned is upheld, resultantly, the appeal is found meritless, the same is disallowed, rejected and dismissed. Record of the trial Court be sent back forthwith under proper receipt. Acquittal appeal is disposed of and after due compilation under rules, shall be consigned to records.
(Mohan Lal) (Rajnesh Oswal)
Judge Judge
Jammu
31.08.2022
Ram Krishan
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No